John Comaroff’s presentation on “Politics of Law” largely centered on the growing hegemony of the law and the rising culture of legality as the privileged domain of 21st century politics. In what follows, I will attempt to touch on a few key points that emerged in Comaroff’s robust presentation.

Rather than relying on the symbology of the process of sacralization we find in theorists that have returned to the work of the likes of Kantorowicz to argue that the force of law relies on the sacred invocation of sovereignty in its complex and always delimiting forms, Comaroff posited a “fetishization” of the law which is built into and results from the administrative invocation of the language and praxis of legal constitutionalism. The law as fetish is the abstract made real, represented as if imbued with an agency of its own, functioning through legal and legalistic discourse that hides power relations through a kind of (fiction of) commensurability. Lawfulness, Comaroff argued, is increasingly read as synonymous with justice, placing under erasure the violence of the law—its exclusions and the commissioning and decommissioning of forms of life.

By drawing upon what Bruce Ackerman has coined the “faith in constitutionalism,” Comaroff highlighted how the terrain of politics today makes of the juridical the privilegeddomain of political contestation. His examples included the Indian constitution which gives the Constitutional Court jurisdiction over executive decisions as well as the functioning of U.S. constitutionalism which makes of the court the arbiter of the validity of congressional and executive legislation. Politics, Comaroff seemed to argue, functions increasingly in the interstices of or through the juridical or perhaps, if we consider his example of “legalized illegalities”[1], in spite of it. The point is, Comaroff argued, the construction and reliance on the legal subject as a kind of privileged model of citizenship and the faith in the law’s operational justice have become fundamental to the functioning of the political, allowing for the contestation of political power (in the case of governments sued in their own constitutional courts) while producing and delimiting the landscape of possibilities. He argued for the way in which the emphasis on the juridical as a privileged site of contestation works with a kind of “evangelizing” of a particular kind of legal subjecthood premised on a rhetoric of the right to desire made through claims of injury.

These claims of injury, Comaroff argued, are key to what he has coined “neoliberal constitutional design.” The neoliberal here seems to function at the level of legislative and constitutional interpretation which makes of personhood an atomized legal subject functioning in a supposedly commensurate space of judicial contestation. Pointing to how bureaucratic and parliamentary authority are increasingly subjected to constitutional authority, he astutely pointed to the intentional fallacy inherent in readings of constitutionalism as a liberal institution divorced of the function of interpretation through which it is constantly made and remade. It remains unclear to me, however, what labor this notion of “neoliberal constitutional design” actually performs. That is, does not the reliance on this concept further reify a kind of faith in constitutionalism—as if it functions independently of the regimes of interpretation marked by the functioning of ordinary judicial processes?

Comaroff noted that even though many constitutions today recognize claims of difference, there is a tendency of the “neoliberal constitution” to limit the process of litigation to claims of injury as posited by atomized units—individuals and groups of individuals (class action), thus making it difficult to obtain economic rights for ethnic groups more generally. Yet, in referring to the case of the San, he also pointed to how group identity can be normativized and cemented through “identitarian class action” and constitutional interpretation—that is, even the acknowledgement of group rights functions through a strict logic of singularity, a point which seems to relate to why so very few juridical claims can be made on grounds of human rights.

Another series of discussions that came up in Comaroff’s lecture were the ways in which the juridical order is an increasingly important site of religious contestation (specifically, I believe, he said in the “Muslim world”) and that religion is increasingly being posited in debates about the law. Reading the call for Sharia-based regimes of power as a call for the “rule of law” Comaroff argued that these calls fall within a “modernist point of view.” He also cited as an example cases operating around the attempt to institutionalize qualities/properties as rightful predicates of Islam. In short, he argued that the politics of faith is increasingly operating around this juridification of the political.

A question that can be asked of his delineation is to what extent it is that his own reduction of a myriad of different phenomena to the “sacralization of the law” actually obtains. A few of the divisional constructs that we can consider beyond this characterization of “sacralization of the law” include the sacralization of constitutionalism, juridification of the everyday (as suggested by seminar participant Brian Goldstone), an instrumental form of resistance, the neo-liberalization of legal interpretation, and the juridification of theology (obviously this is not an exhaustive list). Comaroff readily drew upon examples ranging from India, the United States, England, South Africa to “the Muslim world,” to name a few, leaving some in the audience to wonder to what extent his conclusions about the sacralization of the law depended on his own totalizing gestures, both of reducing a set of different kinds of examples to a singular framework of “sacralization” of the law and of generalizing a condition based on a set of markedly different examples from different sites and contexts. Though the generalizations of the presentation were undoubtedly a function of the attempt to provoke the engagement of an audience of scholars working on markedly different sites, disciplines, and topics, the following question still remains open: can these different examples drawn upon can be rightfully subsumed under either the appellation of ‘sacralization’ or that of ‘the law.’

Sharareh Frouzesh Bennett

[1] According to Comaroff, “legalized illegalities” refers to legislation forwarded for its temporary effects with the knowledge that it will eventually be overturned in court.

In times when I have the privilege of listening to scholars sharing their thoughts and ideas on the world we live in today, I cannot help but wonder about THE question that lies beneath their reflections, analysis, conclusions, interpretations. That question that drives them to think hours into the night and keep digging for answers in the places that they have chosen – or should I say, chose them – to spend most of their intellectual life. How does one end up working on prisons, born-again Christians, the law or the WTO? Where do notions like “ethics of mutuality” come from as analytical tools to counter necropolitics? And as I listened to Peter Geschiere speak eloquently about issues of belonging in a neoliberal age that has produced as much globalization as it has produced heterogeneous practices of locality, I could not help but wonder about the question that drives him to warn us of the terrible repercussions the politics of belonging have had and continue to have in Cameroon and the Netherlands.

He presents quite an alarming portrait of the spread of an extremely reductionist and naturalized form of identity politics, one that brings forth a new form of extreme territoriality, where one’s identity is re-inscribed literally in the soil that gave birth to him/her. Geschiere draws on compelling examples of kin being suddenly turned into strangers, political parties exploiting ethnic tensions and identity politics in order to gain votes in rural villages, relatives who have become urbanized being accused of witchcraft as a form of leveling by their kin and other residents of their villages of origin, and of conflicts erupting over where those who are accused of being allogènes, and not autochtones should or should not be buried.

His arguments relate to a body of literature in the human and social sciences that has been increasingly gaining ground, one that is focused on deconstructing and implicitly delegitimizing notions such as community, and collective manifestations of identity. The philosopher Kwame Appiah comes to mind, so does anthropologist Nigel Rapport. Both authors call for a form of individuality that can skate through the artificial boundaries of national, religious and communitarian identities. The violence human beings’ attachments to certain myths of origin and imagined sites of identity politics are cited as clear examples of the perils of belonging and community as analytical tools to interpret and understand human relations.

That is not the individualist project that Geschiere, I think, seems to defend although overtones might be detected. These notions are too self-evident, too imprecise, and too politicized to be used uncritically by anthropologists Gaschiere argues. Furthermore, they are symptoms of the neoliberization of politics. All of these are strong and convincing arguments. The devastation that fights over who belongs and who doesn’t have left in different societies is unquestionable. Yet, deconstructing belonging as a by-product of neoliberalism and highlighting its perils leaves unanswered an even more fundamental question: Constructed or not, artificial or not, these notions are invested in meaning, they are used and referred to in everyday life, so unless anthropologists are willing to go back to their old habits of telling people who they are and how they should think, we have an obligation to take seriously the meaning and value that groups and individuals invest in belonging.

As Geschiere would undoubtedly agree, autochtony is but one form among many that belonging can take. Its potency lies less, in my view, in its invocation of an organic identity derived from the soil (a specific place) than in the context and cosmology that has made that soil (or place) so central as a primary reference to identity. I am not convinced that the reference to the soil is more prone to the naturalization of identity than is religion or class or political affiliations for that matter … Whenever a criteria for inclusion or exclusion is established, it becomes potent and naturalized in order to impose its hegemony. So in the context of Cameroon, I would be very interested in understanding how “returning to the soil” (the village) has developed into a condition for belonging.

Geschiere argues that neoliberalization has very much to do with that. That is where he leaves me unconvinced. The passion that identity politics invokes can be explained only partially by an order like neoliberalism. Autochtony relates to an extremely powerful mythology of origin and the particular role that the stranger plays in those myths, legends, stories through which societies constitute themselves locally and globally, in the past, through the present and into the future.The causal relationship that Geschiere establishes between autochtony and neoliberalization fails, in my view, to capture the immensely powerful desire to belong as well as the myths of origin that produce autochtony. One eloquent example of this is the myth around which the state of Israel as a land without people for a people without land was created and through which its atrocities continue to be justified. Neoliberalism in this particular case serves only as an instrument among many to keep reproducing this myth. Neoliberlaism without this myth of origin would not have, in my view, made it possible for Zionist notions of autochtony to continue to be legitimized generation after generation regardless of history.

Identifying a notion as having a certain power and cosmology built around it inevitably invites a deconstructivist approach. Anthropologists having always had a problematic relationship with culture, and having always thought about the human from marginality’s perspective are naturally more inclined to be skeptical and react negatively to any normative notion.So the reflex is to deconstruct. The deconstructivist position is one that generally starts with a negative. The notion being deconstructed is more often than not approached from the point of view of marginality, its hegemonic character is taken for granted and thus the orientation of the analysis can only go in the direction of picking through its elements and tearing them apart. This method has been quite useful and fruitful in denaturalizing and exposing implicit discourses of power but it has been quite unsatisfying in understanding why people are attached to such notions beyond treating them as being manipulated and helpless.

So the question is, how to resolve this dilemma of trying to deconstruct a notion without destroying in the same exercise the meaning that it has or has always had for people in one form or another. One might ask, justifiably, why not destroy “autochtony” since in Israel’s case, it has lead to so much suffering and injustice? Quite simply, the answer is because notions of autochtony may also be a site of liberation. Palestinians in diaspora have survived and continue to survive because they can still imagine being part of a shared homeland. Artificial or not, idealized or not, the imagined homeland has served as a catalyst of resistance and getting out of the refugee camps.

I think one of the ways of getting around this obstacle of deconstruction is by changing the root question that drives most deconstructivist interpretations of notions related to identity and belonging. Instead of starting from the premise that autochtony is constructed and thus inevitably artificial, I would actually build on the premise that human beings are quintessentially social and can only enact their humanity by relating to others, and in that sense, the longing to be part of something, to be attached is a condition of being (be-longing to cite David Goldberg). The question then is not how artificial or hegemonic one form of being is or not, but how individuals and groups strive to find belonging in a contemporary world that is constantly calling into question canonized myths of origin.

In a sense, this is what Geschiere does, and his analysis of the repercussions of neoliberalism is part of this quest to understand how different societies define and search for belonging. But neoliberalism is only one intermediary in a series of discourses and phenomena that shape notions of autochtony. I am quite skeptical of the way it has become the be all end all of everything happening in the world today locally and globally. In a way, it’s too easy. I am not sure that neoliberalism is more inclined to bring about the autochtony-related form of belonging. It might be simply the current category that we use to speak about powerful discourses that have always existed. Social scientists tend to invent new terms to think with or against that often refer to recurrent phenomenon. The danger in that is that it gives the impression that we are facing a unique or especially perilous situation when we aren’t.

So what I am proposing is, in effect, to decentralize neoliberalism as a hegemonic discourse by going back and asking the question: how does belonging gain meaning in different contexts and among different societies. Instead of deconstructing what we perceive as artificial categories, I think we should build on localized and historicized understandings of belonging and go from there.

Caveat: what follows is an attempted synopsis of what were very complex ideas. Apologies to their author!

Addressing what he described as the ‘sea change’ in the political landscape of the current fiscal crisis, Professor Hardt sought to work through a reconfiguration of communism drawing on Marx’s early economic and political manuscripts. In his reading of Marx, Hardt identified two concepts which he mapped onto a proposal of how to think beyond the fixities of capital and the social. In so doing, he advocated a ‘third way’ of conceiving the political anchored in a recuperation of the ‘common’ in communism.

Hardt argued that the normative meanings attributed to communism have to be reconceived in light of shifts in the composition of labour and forms of production. He contended that Marx’s notion of property in his 1844 manuscript ‘The Relationship of Private Property’, demonstrates a division between moveable and immoveable property, represented by the extraction of value in profit and rent respectively. Hardt went on to contend that, given the transformation of production, Marx’s analysis of moveable and immoveable property retains its purchase when applied to the concepts of 21st century material and immaterial production. The latter he defined as ideas, language, codes and social relationships in contradistinction to the more traditional forms of material property embodied by the former. The defining characteristic of the immaterial as something shared, leads Hardt to perceive it as the site of ‘the common’, and a locus from which the social power relations of capital can be contested. Whereas, for Hardt, Marx maintains the triumph of profit (the immoveable) over rent (moveable) in terms of the expropriation of value, the contemporary political-social has witnessed the triumph of the immaterial over the material, as its reproducible and shared form makes it more resistant to the kinds of policing and containment applied to the exclusive and non-reproducible qualities of the material.

Hardt qualified this assertion with the following observation: in order for the maximum productivity of the immaterial to be realised, ideas must be shared. The contradictory implications for capitalism thus reside in the paradoxical nature of immaterial production: the more the common is controlled and delimited, the more its productivity is reduced. Conversely, the sharing of the immaterial undermines the notions of private property so central to capitalism’s formation. Hardt supplemented his interpretation of Marx’s analysis of property with a focus on his exploration of communism in the essay, ‘Private Property and Communism’. This essay, Hardt submitted, provides evidence for a Marxian understanding of the ways in which capital appropriates not simply the object/commodity, but also subjectivity. That is, capital seeks to produce human subjects as commodities, as sources of production. This social relation of capital reveals both the increasingly bio-political nature of capitalist production and offers up a site for the interaction of singularities, the formation of multiplicities and mutualities, which resist its hegemonic impositions. The notion of the bio-political and/or immaterial as ‘the common’, and its increasing centrality to modes of capitalist production, allows us to think about the ways in which these concepts can be utilised against capital. When we recognise the ‘common’ in communism we recognise our shared potentiality to dismantle the oppressive apparatus of late capitalism.

Responses to Hardt’s argument are considered by Maki Motapanyane…read on!

Megan Jones

The politics of common belonging

Michael Hardt’s poetic vision for the future asks us to become conscientized to our intrinsic autonomy in the context of late capitalism. This autonomy, he argues, can serve as the basis of a shifting and radicalizing of social, economic and political relations beyond the domain of private property.

The ‘common’ that Hardt proposes brings human plurality and diversity into its fold through what he identifies as the intrinsically autonomous connection human beings have to the ecological (earth, nature) and artificial (creativity, affect, cognitive labour) common. Hardt imagines, from the present, the possibility of a common organized outside of private property relations yet still engaged in the market; a common that challenges the idea that something is only ‘ours’ when we possess it.

The argument that current modes of capitalist production reduce productivity by appropriating, controlling and constraining the common, is compelling. As is Hardt’s vision of rescuing immaterial products (ideas, images, affect) from private property relations so that these may be ‘freely’ shared.

What remains unclear is whether and how this vision of the common accounts for difference and inequality, for the material presence of history in day-to-day life. Radical speculation, in this case around the possibilities for organizing labour relations in a new way - in a manner that frees up human creativity for genuine mutuality, is important to the practice of effecting change. Nonetheless, part of the intellectual responsibility we carry in such endeavours involves grappling concretely with difference, racism, exclusion/inclusion, gender-based violence and vampirism in the name of the common, among other lived realities.

Peter Geschiere’s lecture “Neo-Liberalism and The Paradoxes of Community and Belonging” generates two accounts of belonging. The first account connects belonging to state power, the sharing of resources, recognition and rights within the nation state etc. At the heart of this reading of belonging is public recognition. And the key criterion for public recognition here is autochthony which is a claim to the state of being aboriginal or native to a particular state. This stands in contrast to the allochtons-the so-called strangers. The politics of estrangement and antinomy among the elements of this concept of belonging drove Geschiere’s lecture and partly animated audience’s response.

The antinomy and how it is to be resolved boils down to the ethics of public recognition-that is who is to be recognized as free, necessary, sovereign, autonomous and freely participating member of a polity, and those whose membership of that polity is contingent. Applied to the African continent Geschiere observes the inclusive ethics that defined African societies prior to colonialism and transatlantic slavery. Given this supposition, the issue is : to what extent are the issues of (i) autochthony/allochtony and (ii) ethics of public recognition based on the binary of autochthony/allochtony a problem of the unresolved question of the arbitrariness of the colonial nation state which was driven primarily by crude capital accumulation, cheap labor, colonial conquest and transatlantic slavery? That the politics of autochthony/allochtony cuts across all polities-South and North – with similar characteristics speak to the similarity of the historical project of the nation state both in the colonies and the metropolis.

The second reading of belonging which dominated the response from the audience is belonging as a form of resistance. Belonging as a form of resistance allows us to read historically and properly resistance against global sites of evil-colonialism, transatlantic slavery, racism, apartheid, the holocaust, the occupation of Palestine etc. I will like to round this off with how this plays itself out with respect to the idea of belonging in Global Africa’s (by this I mean the experiences of peoples of African descent in Africa, America , Caribbean, Europe, Asia etc) Diaspora experience. W.E.B. Du Bois’ thesis on Double Consciousness and its problematic appropriation by Paul Gilroy in his thesis on the Black Atlantic forms the basis of my argument.

During the transatlantic slave trade, the first point of attack was the spiritual state of peoples of African descent, their consciousness, their belonging. And the manner of attack is a mutilation of the black identity. The consequence is that peoples of African descent were compelled to look at the world and themselves through the consciousness of others, the “belonging” of others, that of the racist authority. This was a veil Du Bois called Double Consciousness of the Negro. Du Bois was critical of Double Consciousness for he argued that people of African descent were in possession of a true self consciousness, a cultural subjectivity, a belonging which racist authority attacked virulently and crudely.

In more recent period, Paul Gilroy appropriated Du Bois’ thesis and pressed it into a thesis of Black Atlantic in characterizing the experiences of the New African Diaspora .. In Gilroy’s words “… in opposition to nationalist and ethnically absolute approaches, I want to develop the suggestion that cultural historians could take the Atlantic as one single, complex unit of analysis in their discussions of the modern world and use it to produce an explicitly transnational and intercultural perspective…” That any space can be taken as a single unit of analysis is not the problem. The problem for African Diaspora is the sort of black Atlantic subject that emerges from this unit of analysis. Where a single unit of analysis is purged of its ontology, its transformative sense of belonging the product is nothing but a ghost in the machine of capital, pliable, usable and disposable by capital.

Gilroy cites the creative hybrid musical forms of black communities in England as examples of this hybrid black Atlantic cultural product. The crucial point is that Gilroy fails to see why and how his transatlantic product might have been driven by capital rather than the cultural agency of the African Diaspora. A good illustration is the complete purging of black music by capital of its transformative ethos in the name of creativity. Walking around black communities anywhere in the Diaspora and looking straight into the eyes of those little black kids who shake their heads and hips to those musical chloroforms and musical opium in the name of creativity and hybridity, my question all the time is that who benefits, who gains from this flight of belonging and ontology from formerly vibrant transformative and liberating black musical forms?

We do not need to go too far before we see the transformative nature of belonging as a form of resistance. The struggle of the Palestinian people is a true reminder of the unfinished business of culture, of true belonging as form of resistance which Amilcar Cabral talked about, and which Du Bois gestured towards and apprehend as true self consciousness. The global, the universal, the transatlantic are legitimate species in the peoples history only when they are transformative, otherwise they are opium, cracks and soulless ghosts in the machine of capital. Transformative belonging is the antidote against these cracks.

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JWTC

The Johannesburg Workshop in Theory and Criticism is an independent platform for critical social analysis based at the University of the Witwatersrand. It is intended for intellectual stimulation, exchange and sustained interaction around the work of noted scholars in the humanities and social sciences, and the emerging fields of critical legal and science studies.